Old laws, new technology and national borders: In Plain English

Posted Mon, February 5th, 2018 11:11 am by Amy Howe

In 1986, when Congress passed the Stored Communications Act, the World Wide Web did not yet exist; that would not happen until three years later, when British scientist Tim Berners-Lee invented it in Switzerland. Electronic mail did exist, but – although Queen Elizabeth II had used it to send a message in 1976 – it was nowhere near as ubiquitous as it would later become. The SCA gives the government, if it obtains a warrant, the power to require an email provider to turn over the contents of emails. When the Supreme Court returns to the bench at the end of this month, the justices will consider a question that Congress likely didn’t think about 32 years ago: Is an email provider located in the United States required to turn over emails that it is storing overseas?

The case now before the Supreme Court began in December 2013, when the federal government applied for a warrant that would require computer giant Microsoft to turn over information for an email account that the government believed was being used for drug trafficking in or into the United States. When the warrant was served on Microsoft at its Washington state headquarters, the company agreed to provide records that were stored in the United States, including the email customer’s electronic address book. Citing a presumption that U.S. law does not generally apply outside the country, however, it refused to provide the contents of the emails, which were stored in Ireland. After the U.S. Court of Appeals for the 2nd Circuit ruled for Microsoft, the Supreme Court agreed last year to weigh in.

In their briefs in the Supreme Court, Microsoft and the federal government take diametrically opposed positions. For Microsoft, the case is “simple”: Because U.S. laws only apply within U.S. borders unless Congress says otherwise, the government cannot rely on the Stored Communications Act to obtain emails stored overseas. Other language in the statute, Microsoft suggests, supports this interpretation – for example, the SCA uses the word “warrant,” which is generally understood only to apply within the United States. Moreover, the company adds, the SCA authorizes not only the federal government, but also state and local governments, to seek a warrant; it seems “particularly unlikely,” the company contends, that Congress would have wanted local law-enforcement officials to be able to seek and seize evidence from foreign countries. And it doesn’t matter, Microsoft says, that the company could obtain the records from its headquarters in the United States, because the “seizure occurs where the seized object is located, not where the operator happens to sit.”

The United States regards the case as pointing equally clearly towards a different conclusion: Microsoft, a U.S. provider of email services, is merely being asked to disclose communications from the United States that are fully within the company’s control. The government concedes that there is a presumption that U.S. laws do not apply outside the United States. But, it continues, the key question is whether “the conduct relevant to the statute’s focus occurred in the United States.” And here, the government contends, the SCA’s focus is purely domestic: “the disclosure of electronic records to the government in the United States.” Even if the focus of the statute were, as Microsoft has argued, “user privacy,” the government argues that “any invasion of privacy occurs in the United States” – when Microsoft discloses data to the government, which in turn reviews the data.

Microsoft warns the justices that a ruling for the federal government will create precisely the kind of international conflict that the presumption against the application of U.S. laws outside the United States was intended to prevent. On one hand, Microsoft contends, requiring it to turn over to the federal government records stored abroad will “instigate a global free-for-all, inviting foreign governments to reciprocate by unilaterally seizing U.S. citizens’ private correspondence from computers in the United States.” And on the other hand, the company continues, a federal government victory would leave European companies doing business in the United States in an “untenable position,” having to choose between two unpalatable options: They can comply with a U.S. warrant and violate European law, or they can ignore the warrant and risk being held in contempt in the United States.

The United States counters that Microsoft’s concerns are “overstated.” Other countries, the government explains, interpret their laws to reach the same result that the United States is seeking – that is, requiring entities located within the country to turn over evidence stored overseas – “even if they place various restrictions on the use of that power.” But in any event, the government continues, the potential for conflict hasn’t proven to be a recurring problem and is certainly not a reason “for overriding the best reading of the statutory scheme.”

By contrast, the government continues, a ruling for Microsoft would thwart law-enforcement efforts to combat crimes like drug-trafficking and child pornography. If all that matters is where the data is stored, the government posits, Microsoft and other email providers can get around U.S. law enforcement by storing data outside the country, even if the companies can still easily access the data from within the United States. The government acknowledges that evidence can sometimes be obtained through mutual legal assistance treaties, but it stresses that the United States does not have such treaties in place with over half of the world’s countries. And even when the treaties are in place, the government emphasizes, it may take “many months or even years” before the records are turned over – assuming that the United States can pinpoint the location of the data that it is seeking in the first place, which can be difficult in cases involving providers like Google, which “constantly moves data around the world.”

Microsoft dismisses the government’s concerns as “policy arguments,” and it urges the justices to resist the temptation to rely on these arguments to interpret the SCA to cover emails stored overseas. This is a determination for Congress to make, the company suggests. And indeed, Microsoft notes, “Congress is currently weighing proposals—including one submitted by the Government—to modify the Stored Communications Act’s reach to account for the dramatic leaps in technology over the next three decades.” But until Congress acts on these proposals, Microsoft concludes, “the SCA applies only to emails stored here.”

The justices heard oral argument last December in another important privacy-rights case, Carpenter v. United States. In that case, the defendant charged with committing a series of armed robberies argued that his Fourth Amendment rights were violated when prosecutors used his cellphone records, which placed him in the vicinity of the robberies, without getting a warrant. At the oral argument, Justice Stephen Breyer described the dilemma before the justices in Carpenter as “an open box. We know not where we go.” The SCA, rather than the Fourth Amendment, is at the heart of Microsoft’s case, but the justices could be similarly torn as they try to balance the interests at stake here in the context of recent technological advances; we’ll know more when they hear argument later this month.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.